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M/s. Shree Charan pvt. Ltd., Bangalore v/s M/s. V.M. Engineering, Represented By M. Ramesh, Bangalore & Another

    Criminal Revision Petition No. 124 of 2022

    Decided On, 17 March 2022

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Petitioner: H.S. Amshith Hegde, Advocate. For the Respondents: R. Manjunatha Swamy, Advocate.



Judgment Text

(Prayer: This Criminal Revision Petition is filed Under Sections 397 Read with 401 of Cr.P.C. Praying to Set aside the Judgment and Order Dated 31.12.2021 Passed by The Lix Additional City Civil and Sessions Judge, Bengaluru (Cch-60) in Crl.A.No.1142/2019 (Annexure-A) and Confirm The Judgment and Order Dated 19.03.2019 Passed By The Xx Additional Small Causes Judge and Xviii Addl.C.M.M., and M.A.C.T., Bengaluru (Scch-22) in C.C.No.4253/2018 (Annexure-B).

1. This matter is listed for admission today and heard the learned counsel for the petitioner and the learned counsel for the respondents.

2. This petition is filed praying this Court to set aside the judgment and order dated 31.12.2021 passed by the Court of LIX Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1142/2019 and confirm the judgment and order dated 19.03.2019 passed by the XX Additional Small causes Judge and VIII Additional C.M.M. and MACT, Bengaluru in C.C.No.4253/2018.

3. The factual matrix of the case of the complainant/petitioner herein is that the complainant is running chit business. The respondent/accused is one of the subscriber of the chit run by the complainant and subscribed Ticket No.20 in Chit group No.LB/ST/15 for a chit value of Rs.30,00,000/- and subscription installment payable at Rs.1,00,000/- per month for a period of 30 months. Towards the said Ticket No.20 chit, the accused had paid a sum of Rs.6,58,375/- including dividend and still there is an outstanding of Rs.23,41,625/- to the complainant Company. The accused is also liable to pay the damages of sum of Rs.1,40,498/- along with interest of Rs.7,30,764/-. In total the accused is liable to pay a sum of Rs.32,12,887/- to the complainant Company. The accused had also subscribed for Ticket No.30 in Chit group No.2SB/ST/15 for a chit value of Rs.1,05,00,000/- and the subscription installment payable at Rs.3,50,000/- per month for a period of 30 months. Towards the said Ticket No.30, the accused has paid a sum of 61,74,450/- including dividend and still there is an outstanding of Rs.43,25,550/- to the complainant Company. The accused is also liable to pay the damages in a sum of Rs.2,59,533/- along with interest of Rs.6,48,206/-. In total the accused is liable to pay a sum of Rs.52,33,289/- to the complainant Company. The accused is liable to pay sum of Rs.84,46,176/- towards outstanding installments amount. After repeated requests and reminders, the accused issued a cheque in favour of the complainant towards the payment of above said outstanding amount and when the same was presented, it was dishonoured with an endorsement “funds insufficient. Hence, the legal notice was issued through RPAD and inspite of it, the accused has not paid the amount and hence the complaint was filed and the Trial Court took the cognizance.

4. The complainant has been examined as P.W.1 before the Trial Court and got marked the documents at Exs.P.1 to 10. When the matter was set down for cross-examination of P.W.1, the complainant and the accused filed the joint memo and prayed to pass judgment on the basis of the terms and conditions enumerated in the joint memo. Based on the joint memo, the judgment is passed, wherein installments are given for payment to the tune of Rs.66 lakhs. In case of default to pay the above said installment, the accused is liable to pay entire cheque amount of Rs.84,46,176/- with interest at the rate of 18% per annum from the date of filing this case till realization to the complainant and also undergo simple imprisonment for a period of six months. The same is challenged before the Appellate Court by filing Crl.A.No.1142/2019 and the Appellate Court set aside the order of the Trial Court which is passed based on the joint memo in coming to the conclusion that it is evident from the order sheet that case was not at all posted for cross-examination of P.W.1. No opportunity was given to the accused to defend his case. On the basis of the joint memo, the Trial Court passed the judgment and order of conviction, which is impugned in this appeal. When the Court has not complied with the mandatory provisions of law in the trial, the finding given by the Trial Court for conviction of the accused does not survive under law and hence set aside the order and remanded the matter for fresh consideration. Hence, the present petition is filed before this Court.

5. The main contention of the learned counsel for the petitioner before this Court is that the Appellate Court has committed an error in coming to the conclusion that no opportunity was given to cross-examination P.W.1. When the joint memo is filed before the Trial Court, the question of giving opportunity to cross-examine P.W.1 does not arise. The said judgment is passed based on the joint memo. The learned counsel submits that the respondent and his counsel also signed the joint memo. Now, the respondent cannot contend that it was not in his knowledge and fraud has been committed. The learned counsel in support of his argument relied upon the additional documents Exs.C.1 to 14 that is marked before the Trial Court and apart from that, he has produced the certified copy of the order sheet of the Trial Court.

6. The learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of R. RAJESHWARI v. H.N. JAGADISH reported in (2008) 4 SCC 82, wherein it is observed that while a settlement is arrived at, it is not necessary under the provisions of the Negotiable Instruments Act and/or Cr.P.C. to file any affidavit affirmed by the complainant or accused. By reason of authority granted by a litigant in favour of his advocate which, inter alia, empowers the latter to enter into a settlement, any settlement arrived at, on behalf of a party to a lis would be binding on the parties thereto. In the instant case, settlement made was permissible in law. Ex facie, it did not violate any public policy and was not otherwise inequitable. Hence, no case made out for interference.

7. The learned counsel also relied upon the judgment of this Court passed in Crl.R.P.No.100039/2019 dated 14.02.2019, wherein this Court in paragraph No.5 has taken note of the joint memo filed by the parties and the parties have been identified by the counsel who was record in the Trial Court and now cannot contend that he has not signed the joint memo and hence dismissed the revision petition.

8. Per contra, the learned counsel for the respondents would contend that first of all, the case was not set down for cross-examination. The learned counsel submits that on the date when the case was pending before the Trial Court, the respondent was informed to make signature and he has to seek permission for cross-examination of the witness. On the guise of the said mentioning, the signature is obtained on the joint memo. The learned counsel, who was on record also not told the true facts to the respondent and fraudulently obtained the signature on the joint memo. The learned counsel submits no notice was served on the respondent before initiating the proceedings under Section 138 of the Negotiable Instruments Act (‘NI Act’ for short). Hence, the Appellate Court taking note of no opportunity was given to the respondent, rightly set aside the order of the Trial Court and remanded the matter and the same does not require interference of this Court. The learned counsel submits that even based on the joint memo, assuming that both the parties have filed the joint memo, the Court cannot convict for imprisonment. Hence, it requires the matter to be considered afresh before the Trial Court and the impugned order does not require any interference of this Court.

9. Having heard the learned counsel for the petitioner and the learned counsel for the respondents and also on perusal of the material available on record, the contention of the learned counsel for the petitioner is that the Appellate Court while setting aside the order, committed an error. On perusal of the impugned order, the Appellate Court made an observation that it is evident from the order sheet that case was not at all posted for cross-examination of P.W.1 and no opportunity was given to the accused to defend his case. On the basis of the joint memo, the Trial Court passed the judgment and order of conviction, which is impugned in this appeal. The Appellate Court has observed that the Trial Court has not complied with the mandatory provisions of law in the trial, as required. The findings given by the Trial Court for conviction of the accused does not survive under law. Therefore, on the ground of procedural lapse on the part of the Trial Court, the judgment of conviction and order of sentence needs to be interfered to meet the ends of justice. On perusal of the certified copy of the order sheet, P.W.1 was examined and got marked the documents at Exs.P.1 to 6 and also the matter was set down for crossexamination of P.W.1. In the meanwhile, a joint memo was filed. It is not in dispute that the joint memo was filed, but the only contention of the respondent is that the joint memo was obtained by playing fraud on the respondent. On perusal of the joint memo i.e., certified copy available at page No.41, the accused admitted to pay an amount of Rs.66 lakhs and though the claim is more than Rs.84 lakhs, it is settled for Rs.66 lakhs and the amount is payable through cheque or DD or bank account transfer for the proof of the payment in terms of the settlement. It is specifically mentioned in the joint memo that in case of default in payment, the accused is liable to pay the entire cheque amount of Rs.84,46,176/- along with interest at 18% per annum, since the date of filing of above case till realization to the complainant.

10. Having perused the joint memo, based on the joint memo, the order has been passed. The respondent and the counsel who is representing on his behalf also have signed the said document. When such being the facts, the order has been passed on 19.03.2019 and an Appeal was filed before the Appellate Court i.e., in 2019 itself wherein also it is urged that the joint memo is taken behind the back of the respondent herein and he was convicted based on the joint memo and no sufficient opportunity was given. It has to be noted that when the matter was set down for cross-examination, the parties filed the joint memo and hence the question of giving any opportunity to cross-examine as observed by the Appellate Court is erroneous. If the parties have not filed the joint memo and not given an opportunity for cross-examination of P.W.1, the observation of the Appellate Court is correct, but when both the parties and respective counsel have singed the joint memo and also identified by the counsel, the question of giving an opportunity to cross-examine does not arise. The very approach of the Appellate Court is erroneous. The observation of the Appellate Court that the Trial Court has not complied the mandatory provisions of law in the trial and the finding given by the Trial Court for conviction of the accused does not survive under law, cannot be the right proposition for the reason that the question of complying with the mandatory provision of law in giving an opportunity does not arise since both the parties agreed and filed the joint memo.

11. The learned counsel for the respondents would vehemently contend that the same is obtained by fraudulent act and there is nothing on record to show that action is taken against the learned counsel, who was on record while filing the joint memo for having committed any fraud. The very approach of the Appellate Court in setting aside the order of the Trial Court is erroneous and the very reasoning given by the Appellate Court in paragraph No.16 that no opportunity is given for crossexamination of P.W.1 is erroneous. I have already pointed out that in the order sheet, it is specifically mentioned that the matter is posted for cross-examination of P.W.1 and at that juncture, the joint memo was filed. It is important to note that the claim of the complainant before the Trial Court is for Rs.84,46,176/-, but in the joint memo the same is not the agreed amount. The petitioner agreed to pay an amount of Rs.66 lakhs and not Rs.84,46,176/- and apart from that, the very contention of the learned counsel for the respondents is that interest is awarded. On perusal of the joint memo, in condition No.3. in case of default, a provision is made to pay the interest at the rate of 18% per annum and hence the very contention that ordering interest under the NI Act is not correct also cannot be accepted. The judgment is passed based on the joint memo filed by the parties as well as advocate who have filed the joint memo on 19.03.2019 and the same is in terms of the joint memo.

12. The other contention of the learned counsel for the respondent is that while convicting the respondent, the Trial Court ordered to undergo simple imprisonment for a period of six months. While accepting the joint memo, the liability is accepted and also time bound repayment is agreed in terms of the joint memo and the punishment of six months is awarded in case of default and not the substantive sentence. Only default sentence is passed and not substantive sentence. Hence, the contention of the learned counsel for the respondent cannot be accepted. In view of the discussions made above and also the fi

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ndings given by this Court that the Appellate Court has committed an error in coming to the conclusion that no cross examination opportunity is given and the same is erroneous when the parties have filed the joint memo and signed the same and the same has been identified by the respective counsel, now the respondent cannot contend that fraud has been taken place. I have already pointed out that no action is taken against the counsel even assuming that the respondent is not having any worldly knowledge about the joint memo, nothing is done and only a submission is made without any material regarding fraud or taking any action against the counsel on record. 13. The learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of R. RAJESHWARI (supra) and the order of this Court passed in Crl.R.P.No.10039/2019, wherein it is categorically held that once the parties have filed the joint memo and identified by the advocates, the revision petition is not maintainable. Hence, there is no merit in the contention of the learned counsel for the respondents. I do not find any reasons to exercise the revisional jurisdiction. 14. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed. The order dated 31.12.2021 passed by the Appellate Court in Crl.A.No.1142/2019 is set aside. Consequently, the order dated 19.03.2019 passed by the Trial Court in C.C.No.4253/2018 is confirmed.
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